STATE OF NEW JERSEY v. HENRY L. TUKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY L. TUKES,

Defendant-Appellant.

________________________________________________________________

October 12, 2016

Submitted September 20, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-12-1249.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Leonard Victor Jones, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Henry Tukes of committing one count of third-degree burglary, N.J.S.A. 2C:18-2. After determining defendant was extended term eligible, N.J.S.A. 2C:44-3, the Law Division sentenced him to ten years, subject to a discretionary five-year period of parole ineligibility, N.J.S.A. 2C:43-6(b). Defendant appeals from the court's judgment of conviction, challenging the imposition of an extended term and claiming he is entitled to a new trial because of the trial judge's improper inquiry to his counsel in front of the jury. We affirm.

The facts relating to defendant's commission of the burglary are not in dispute and not material to our discussion. Suffice it to say, he was convicted of breaking into the victim's home with the intent to commit a theft, but fled without taking anything when he was discovered inside the home.

During his trial, when the State rested, the court made inquiry of defendant's counsel as to whether he was ready to proceed with his case. The court stated in the jury's presence

THE COURT: All right. We begin with [defense counsel]. Do you wish to present any witnesses, sir?

DEFENSE COUNSEL: No, Judge. Defense rests at this moment.

THE COURT: Okay. And there is no evidence that was previously submitted? So no evidence, correct?

DEFENSE COUNSEL: None.

Prior to defendant's sentencing, the State filed a motion for the court to exercise its discretion to sentence defendant to an extended term, N.J.S.A. 2C:44-3. At the time of his sentencing hearing, defendant had at least ten prior indictable convictions for which he served numerous periods of incarceration. Most of his offenses were similar to the crime the jury found he committed in this case.

At sentencing, defendant's counsel argued for the imposition of a probationary sentence or, in the alternative, a four-year period of incarceration. Counsel reminded the court that defendant committed the crime due to his on-going drug addiction and nothing was removed from his victim's house. As a result, he argued that mitigating factors two and four should apply to the court's consideration.1

The State argued its motion for imposition of an extended term should be granted and that aggravating factors three, six and nine applied.2 In support of the State's arguments, the prosecutor primarily relied upon defendant's extensive record of convictions and incarcerations for similar offenses. In addition, the prosecutor urged the court to impose a discretionary period of parole ineligibility of five years because the aggravating factors substantially outweighed the non-existent mitigating factors.

After considering counsels' arguments, the court set forth its findings. The court stated

I've reviewed [defendant's] Presentence Investigation report, he's 42 years old, he has approximately 11 prior indictable convictions. He has experienced prison, probation, he's been violated on parole several times. . . .

Mitigating factors, I don't find any mitigating factors in this case.

I do find aggravating factors 3, 6, and 9. Three, the risk that [defendant] would commit a new offense at this time, because he has always committed offenses, ever since 1989 and nothing has changed. Number 6 is the extent of his prior record and it is extensive. And there are some very serious offenses in his prior record; two robbery charges and numerous burglary charges. So, apparently, over the years nothing has prevented [defendant] from burglarizing private home[s]. And Number 9, of course, is the need for deterring [defendant] and others from violating the law.

The aggravating [factors] do far outweigh the mitigating factors in this case. Based upon not only quantity, but quality, as well.

I looked at the application of the [S]tate for an extended term. I agree with the state that [defendant] is a persistent offender, that nothing has changed over the last 24 years, and that he should be sentenced as a persistent offender to an extended term.

The court entered the judgment of conviction and this appeal followed.

On appeal, defendant argues

POINT I

THE COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM SENTENCE.

POINT II

THE SENTENCE OF TEN YEARS IN NEW JERSEY STATE PRISON, WITH FIVE YEARS PAROLE INELIGIBILITY WAS EXCESSIVE.

POINT III

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S IMPROPER QUESTIONING OF DEFENSE COUNSEL, IN THE PRESENCE OF THE JURY, ON WHETHER THE DEFENDANT WAS GOING TO PRESENT ANY WITNESSES OR EVIDENCE. (NOT RAISED BELOW).

Turning first to defendant's arguments about his sentence, we begin by acknowledging that our review of sentencing determinations is limited and is governed by the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence, even if we would have reached a different result, unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found . . . were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts . . . makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

Applying this standard, we discern no abuse of the court's discretion by sentencing defendant to an extended term or imposing a five-year period of parole ineligibility. Defendant clearly met the definition of a persistent offender and the court properly considered the relevant factors to reach its conclusion as to the need for sentencing defendant to an extended term. See N.J.S.A. 2C:44-3(a); State v. Hudson, 209 N.J. 513, 526-27 (2012); State v. Case, 220 N.J. 49, 65-66 (2014). The court's findings relying upon defendant's past criminal conduct and the inability of previously imposed sanctions, including state prison sentences, to deter future criminal conduct were adequate to support the trial court's determination that an extended-term sentence was appropriate.

Contrary to defendant's argument, the court's failure to mention "the need to protect the public" in its statement of reasons did not bar his sentencing to an extended term. "[A] finding of 'need to protect the public' is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range." State v. Pierce, 188 N.J. 155, 168-70 (2006).3 "The court may consider the protection of the public when assessing the appropriate length of a defendant's base term as part of the court's finding and weighing of aggravating factors and mitigating factors." Ibid. "The finding is not[, however,] a necessary condition . . . to the court's determination whether defendant is subject to a sentence up to the top of the extended-term range." Ibid. Nevertheless, we easily infer from the court's reasoning that it considered the need to protect the public based upon its comments about the nature and quantity of defendant's repeat offenses. See State v. Miller, 205 N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)) ("[S]entences can be upheld where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning").

We are also not "shocked" by the length of the sentence imposed and find no abuse of the court's discretion in imposing the ten-year term with the five-year period of parole ineligibility. See Roth, supra, 95 N.J. at 365. We reject defendant's contention that his sentence's length was the result of any impermissible "double counting" as the court relied on findings beyond those essential to imposition of this extended term, such as a need for deterrence and a risk of recidivism. See State v. Carey, 168 N.J. 413, 425-27 (2001). Although a defendant need have only two prior indictable convictions to be eligible as a persistent offender, N.J.S.A. 2C:44-3(a), defendant had at least ten such convictions.

Finally, defendant's argument that the judge's questions to defense counsel about whether he was producing any witnesses or other evidence constituted plain error, R. 2:10-2,4 is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," and (4), "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."

2 N.J.S.A. 2C:44-1(a)(3) "[t]he risk that the defendant will commit another offense," (6) "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and (9) "[t]he need for deterring the defendant and others from violating the law."

3 In Pierce, the Supreme Court explained the process a sentencing court must follow when considering a sentence in the extended- term range. It stated

The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.

. . . .

[O]nce the court finds that those statutory eligibility requirements are met, the maximum sentence to which defendant may be subject, . . . is the top of the extended-term range . . . . Where, within th[e extended] range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court--subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found.

[Id. at 168-69.]

4 Where an argument was not raised in the trial court, a defendant must show plain error. State v. Maloney, 216 N.J. 91, 104 (2013). Defendant has the "burden of proving that the error was clear and obvious," and that it had "the clear capacity to bring about an unjust result." State v. Koskovich, 168 N.J. 448, 529 (2001) (quoting State v. Morton, 155 N.J. 383, 421 (1998) and State v. Feaster, 146 N.J. 1, 40 (1998)).